Mock Trial: Are Job Descriptions Illegal?

Aug 13, 2010
This article is part of a series called Opinion.

If job descriptions aren’t illegal, they should be.

Let’s hold a mock trial. You’re one of the jurors. We don’t need unanimity here, a mere super majority will do. Here’s a link to the public survey so you can be involved and register your verdict, and see the results. But before you vote, you must hear all of the evidence.

Let me first state my rather obvious bias and claims in my opening statement: there is no doubt in my mind that skills-infested job descriptions prevent companies from hiring top performers and limit their ability to hire diversity candidates. Furthermore, managers and recruiters who rely on these are doing their companies a great disservice. I will prove this during this trial by providing convincing evidence to the following:

  1. Job descriptions define average people, not the best performers.
  2. Diversity candidates often have non-traditional experiences and, as a result, are wrongfully excluded from consideration.
  3. It’s what people do with their skills and abilities that should be used to judge their performance, not the amount of skills and experiences they possess.
  4. Job descriptions don’t define the actual job. They define the person in the job, and the criteria used is suspect at best, since there are a great many people who can excel in the job with a different mix of skills and experiences.
  5. There is no law that says you must post boring job descriptions.
  6. Job descriptions violate the Uniform Guidelines.
  7. If job descriptions aren’t used for internal promotions, why should they be used for external screening and selection?
  8. There is no scientific basis for the creation of the these job descriptions.
  9. Competency models are only slightly better than job descriptions in minimizing the core problems involved in using job descriptions.

If you’re not seeing or hiring enough top performers or highly-qualified diverse candidates, the root cause of the problem can be attributed to the use of skills-infested job descriptions. Following is a quick summary of the proof to be presented during this trial. Witnesses will be called for each phase.

  1. Top performers tend to get promoted more rapidly than under-performers. As a result, after a few years, they have less overall experience than the average person in the same job. If average years of experience and skills is used as the cut-off for screening when hiring from the outside, then the best people — those in the top-half — will automatically be excluded.
  2. Diverse candidates tend to have non-traditional experiences, yet can still be top performers. Traditional job descriptions don’t account for this type of equivalent or comparable experience. On this point alone, job descriptions are discriminatory and should be banned, unless it can be proven that the absolute values defined for the KSAs are essential.
  3. In cases where adverse impact has occurred, the Uniform Guidelines requires that the job selection process to be validated. Part of this includes a job analysis and proof that the assessment process accurately predicts on-the-job performance. A job analysis is a formal study of what the actual job entails and what it takes to successfully perform the job. A job description is not a description of the job; it’s a description of the person in the job, and therefore not acceptable proof.
  4. The Knowledge, Skills and Abilities required for job success are derived from the job analysis. Three points will be made during the trial itself to demonstrate how KSAs are misused. First, most people who write job descriptions, including a listing of the KSAs, don’t conduct a proper job analysis first. Second, while KSAs are needed to perform the job, these are dependent variables, and having these KSAs doesn’t mean a person can do the work successfully. This is a form of the logical argument “asserting the consequent: just because A requires B, doesn’t mean having B determines A.” Third, the Obama administration is now formally undergoing a “Hiring Reform” reform initiative questioning the value of KSAs and how they’re assessed for these same reasons.
  5. Competency models are weak substitutes for KSAs and job descriptions for similar “asserting the consequent” logic flaws. For example, just because someone has the important competency labeled “drive, self-motivation, or initiative,” doesn’t mean it can be universally applied in all situations. Being driven could be a result of the manager, the culture, or the actual work itself. It will be proven in trial that unless a competency can be directly tied to the job analysis, measuring it generically has no validity from an assessment standpoint.
  6. A job analysis that lists a series of performance objectives required for job success eliminates the need for traditional job descriptions and the use of absolute KSAs for assessment purposes. Candidates can then be evaluated by obtaining a comparable accomplishment for each required performance objective required.
  7. There is no legal requirement to post boring job descriptions or use a one-step hiring process to advertise job openings. For example, the OFCCP would not find fault with the following two-step hiring process. Step one: a creative posting highlighting just the challenges and opportunities, listing few, if any, requirements. Step two: everyone who applies gets an email describing the job challenges and requiring the person to submit a one-page write-up summarizing their most comparable accomplishments.
  8. The rules have changed. There are few traditional job experiences anymore, so why continue to look for a declining population of people with traditional experiences. The economic bust, generational differences, the globalization of the workforce and the relationship between the employee and the employer have undergone such massive changes, that relying on the relic of the past — job descriptions — is comparable to using the telegraph to send text messages.
  9. Top people, including diverse candidates, don’t decide to apply for a job, or compare multiple offers, based on the job description. They are more interested in the challenges and growth opportunities, the leadership qualities of the hiring manager, the company culture, and overall impact they can make. For this reason alone job descriptions should not be used for advertising purposes. Job descriptions are the lazy way out. Managers use them to replace thinking and job boards use them since they’re formulaic and easy to scale. Unfortunately they cause more harm than good.

Since we haven’t gone to trial yet, and this list is only a summary of what we’re going to prove during the actual trial, let’s stop for a moment and get your initial reaction.

Based on the above, do you think I would lose at trial or could a make a convincing case that traditional job descriptions, if they’re not outright illegal, should be banned? The third option is even if they are not illegal, traditional job descriptions do prevent companies from hiring people in the top half and minimize their ability to build a diverse workforce. Here’s a link to cast your verdict, and here’s a link to the results. As far as I’m concerned it’s an open and shut case, but don’t hesitate to add your jury room comments.

This article is part of a series called Opinion.
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